Can someone serve as both a Texas school district trustee and a director of an improvement district that covers the same area?

TX AG Opinion GA-0307: Can a school trustee also sit on an overlapping improvement district board?

Plain-English summary

A state representative asked whether one person could simultaneously serve as a trustee of the New Caney Independent School District and as a director of the East Montgomery County Improvement District (EMCID). The EMCID's boundaries are coextensive with New Caney ISD's (plus the neighboring Splendora ISD), and the district has broad powers over public improvements like streets, drainage, parks, and utilities, funded in part by a sales and use tax the EMCID board can call an election to adopt and can abolish entirely on its own, without a vote.

The opinion first cleared away one constitutional argument: Texas Constitution article XVI, section 40, which bars holding more than one "office of emolument" at the same time, doesn't apply here, because school trustees serve without pay and so don't hold an "office of emolument." But the request still implicated the common-law doctrine of incompatibility, which Texas courts apply through three branches: self-appointment (sitting on the body that appoints you), self-employment (supervising your own employment), and conflicting loyalties (owing duties to two bodies whose interests can clash). The first two didn't fit this situation, since the school trustee and EMCID director aren't appointed by each other and the case doesn't involve employment. But the third, conflicting loyalties, did fit. The opinion explained that whenever two governmental bodies' boundaries overlap and both can tax the same area, the same person serving both creates a built-in conflict, because each body is supposed to maximize its own revenue and a single person can't fully serve two competing masters. The opinion rejected the argument that different tax types (ad valorem property tax for the school district versus sales and use tax for the EMCID) made the conflict less real, since the EMCID board's unilateral power to call a sales tax election, and especially its power to kill the tax without any vote at all, gave it substantial, real authority over taxation in the same area the school district taxes. So the two roles are incompatible, and a single person holding both at once vacates the trustee seat under the doctrine.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

New Caney ISD trustees and EMCID directors: The opinion held these two positions are legally incompatible because of the conflicting-loyalties doctrine, meaning a person could not hold both seats at the same time; accepting the second office would, under the doctrine, operate as an automatic resignation from the first.

Other overlapping special-purpose districts and school boards in Texas: The opinion's reasoning, that overlapping taxing authority over the same geographic area creates conflicting loyalties even when the two bodies use different tax mechanisms, gave a template for analyzing similar dual-service questions involving any school district and an improvement, management, or development district with coextensive or overlapping boundaries and independent taxing power.

Common questions

Can one person serve as a school district trustee and a director of an improvement district that covers the same area?
No. The opinion concluded that where an improvement district's boundaries match a school district's and both retain meaningful taxing authority over that area, holding both positions at once violates the conflicting-loyalties branch of the common-law incompatibility doctrine.

Does it matter that the school district and the improvement district use different kinds of taxes?
Not enough to avoid incompatibility, according to the opinion. Even though the school district levies ad valorem property taxes while the improvement district levies a sales and use tax requiring voter approval to adopt, the opinion found the improvement district's unilateral power to abolish that tax without an election meant its board retained substantial taxing authority, enough to create the same kind of conflict.

Is this the same as the constitutional rule against holding two paid public offices at once?
No. The opinion noted that Texas Constitution article XVI, section 40's ban on holding more than one "office of emolument" did not apply, because school trustees serve without compensation. The conflict here came instead from the separate common-law incompatibility doctrine.

Background and statutory framework

The East Montgomery County Improvement District was created by special act of the legislature in 1997 as a governmental agency and political subdivision, with boundaries matching New Caney ISD and Splendora ISD as of January 1, 1997. It holds the powers of a municipal management district under Local Government Code chapter 325, subchapter E, plus the powers of an industrial development corporation under the Development Corporation Act of 1979, letting it build and operate a wide range of public improvements (streets, drainage, parks, utilities, transit, and more) and provide services like business recruitment and public safety support. For revenue, the EMCID may impose a sales and use tax if approved by district voters at an election the board calls, but the board may abolish that tax rate by its own order, without an election.

Independent school district trustees have, under Education Code section 11.151(b), the "exclusive power and duty to govern and oversee the management of the public schools of the district," with all powers not delegated to the Texas Education Agency or State Board of Education reserved to the trustees, and trustees may levy ad valorem property taxes and issue bonds under section 11.152. Trustees serve without compensation under section 11.061(d), which is why the opinion found Texas Constitution article XVI, section 40's "office of emolument" rule inapplicable.

The opinion applied the three-branch common-law incompatibility framework recognized in earlier AG opinions (GA-0032 (2003), GA-0015 (2003), JC-0199 (2000), JM-1266 (1990)). Self-appointment incompatibility traces to Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), which held that an officer with appointing power cannot be appointed to the office they appoint to. Self-employment incompatibility, a corollary first applied in Attorney General Opinion LA-114 (1975) to bar a teacher from sitting on her own district's board, did not apply here either. The operative branch, conflicting loyalties, traces to Thomas v. Abernathy County Independent School Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted), which held a school trustee could not simultaneously serve as a city alderman because the city government held supervisory powers over school property and duties that could conflict with the trustee's own duties, so holding both seats operated to vacate the trustee position. Applying that principle and its own earlier opinion GA-0032 (2003) (quoting JC-0557 (2002)), that "where the object of each district is to maximize its own revenues, a single individual would have great difficulty in exercising his duties to two separate and competing masters," the opinion concluded the EMCID's substantial, partly unilateral taxing authority over the same area as the school district made the two positions incompatible.

Citations

Statutes and special acts:

• Tex. Educ. Code Ann. § 11.151(b) (Vernon Supp. 2004-05)
• Tex. Educ. Code Ann. § 11.152 (Vernon 1996)
• Tex. Educ. Code Ann. § 11.061(d) (Vernon 1996)
• Tex. Const. art. XVI, § 40
• Act of May 28, 1997, 75th Leg., R.S., ch. 1316, § 1(a), 1997 Tex. Gen. Laws 4987

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Thomas v. Abernathy County Independent School Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)

Other authorities:

• Tex. Att'y Gen. Op. No. GA-0032 (2003)
• Tex. Att'y Gen. Op. No. GA-0015 (2003)
• Tex. Att'y Gen. Op. No. JC-0199 (2000)
• Tex. Att'y Gen. Op. No. JM-1266 (1990)
• Tex. Att'y Gen. Op. No. JC-0557 (2002)
• Tex. Att'y Gen. Op. No. LA-114 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0307
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0307.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 1, 2005

The Honorable Allan B. Ritter
Chair, Committee on Economic Development
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0307

Re: Whether an individual may simultaneously serve as a trustee of the New Caney Independent School District and director of the East Montgomery County Improvement District (RQ-0269-GA)

Dear Representative Ritter:

You ask whether an individual may simultaneously serve as a trustee of the New Caney Independent School District and director of the East Montgomery County Improvement District.[1]

The East Montgomery County Improvement District (the "EMCID") was created in 1997 by special act of the legislature, as "a governmental agency, body politic and corporate, and political subdivision of the state."[2] The boundaries of the EMCID "are coextensive with the boundaries of the New Caney Independent School District and the Splendora Independent School District as those boundaries existed on January 1, 1997, but the district does not include any portion of the City of Houston as it existed on January 1, 1997." EMCID Act, supra note 2, § 4, at 4988. Initial directors of the EMCID were appointed by the commissioners court of Montgomery County. See id. § 7, at 4989. A subsequent election confirmed the district, and later, initial permanent directors were elected. See id. §§ 8-9, at 4989.

The EMCID has "the rights, powers, privileges, and other functions of a municipal management district under Subchapter E, chapter 325, Local Government Code," as well as "the powers given to an industrial development corporation organized under the Development Corporation Act of 1979" (article 5190.6 of the Revised Civil Statutes). Id. § 15, at 4990. The EMCID is specifically authorized to undertake improvement projects and services that may include:

(1) the construction, acquisition, lease, rental, installment purchase, improvement, rehabilitation, repair, relocation, and operation of:

(A) landscaping; lighting, banners, or signs; streets or sidewalks, pedestrian or bicycle paths and trails; pedestrian walkways, skywalks, crosswalks, or tunnels; highway right-of-way or transit corridor beautification and improvements;

(B) drainage or storm water detention improvements; solid waste, water, sewer, or power facilities and services, including electrical, gas, steam, and chilled water facilities and services;

(C) parks, lakes, gardens, recreational facilities, open space, scenic areas, and related exhibits and preserves; fountains, plazas, or pedestrian malls; public art or sculpture and related exhibits and facilities; educational or cultural exhibits and facilities; exhibits, displays, attractions, or facilities for special events, holidays, or seasonal or cultural celebrations;

(D) off-street parking facilities, bus terminals, heliports, mass-transit, or roadway-borne or water-borne transportation systems; and

(E) other public improvements, facilities, or services similar to the improvements, facilities, or services described by Paragraphs (A) through (D) of this subdivision;

(2) the cost of removal, razing, demolition, or clearing of land or improvements in connection with providing an improvement project;

(3) the acquisition of real or personal property or an interest in the property that is made in connection with an authorized improvement project; and

(4) the provision of special or supplemental services to improve or promote the area in the district or to protect the public health and safety in the district, including advertising, promotion, tourism, health and sanitation, public safety, security, fire protection or emergency medical services, business recruitment, development, elimination of traffic congestion, and recreational, educational, or cultural improvements, enhancements or services.

Id. § 17, at 4991.

For revenue purposes, the EMCID is authorized to "impose a sales and use tax for the benefit of the district if authorized by a majority of the qualified voters of the district voting at an election called for that purpose." Id. § 21(a), at 4991. The district's board of directors is empowered to "call an election to adopt, change the rate of, or abolish a sales and use tax." Id. § 22(a), at 4992. However, the board "by order may abolish the local sales and use tax rate without an election." Id. § 26, at 4992.

You ask whether an individual may simultaneously serve on the board of directors of the EMCID and the New Caney Independent School District. See Request Letter, supra note 1, at 1. The trustees of an independent school district

have the exclusive power and duty to govern and oversee the management of the public schools of the district. All powers and duties not specifically delegated by statute to the [Texas Education Agency] or to the State Board of Education are reserved for the trustees, and the agency may not substitute its judgment for the lawful exercise of those powers and duties by the trustees.

TEX. EDUC. CODE ANN. § 11.151(b) (Vernon Supp. 2004-05). Section 11.152 of the Education Code authorizes the "trustees of an independent school district [to] levy and collect [ad valorem property] taxes and issue bonds." Id. § 11.152 (Vernon 1996).

We note initially that article XVI, section 40 of the Texas Constitution, which prohibits a person from simultaneously holding more than one "office of emolument," is not applicable to the situation you pose. See TEX. CONST. art. XVI, § 40. Although both positions at issue here are "offices," a school district trustee serves without compensation and thus does not occupy an "office of emolument." See TEX. EDUC. CODE ANN. § 11.061(d) (Vernon 1996) ("The trustees [of an independent school district] serve without compensation.").

Your question does, however, implicate the common-law doctrine of incompatibility. That doctrine recognizes and prohibits three kinds of conflicts that may arise from holding two public offices: self-appointment, self-employment, and conflicting loyalties. See generally Tex. Att'y Gen. Op. Nos. GA-0032 (2003), GA-0015 (2003), JC-0199 (2000), JM-1266 (1990). The first is derived from the Texas Supreme Court's decision in Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928), in which the court stated that

[i]t is because of the obvious incompatibility of being both a member of a body making the appointment and an appointee of that body that the courts have with great unanimity throughout the country declared that all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint.

Ehlinger, 8 S.W.2d at 674. "Self-employment" incompatibility is a corollary to the "self-appointment" doctrine. It was first applied in Attorney General Opinion LA-114, which concluded that a public school teacher was ineligible to serve as a member of the board of trustees of the district in which she was employed as a teacher. See Tex. Att'y Gen. LA-114 (1975) at 8. Neither of these two prongs of the incompatibility doctrine is applicable here.

The instant situation implicates the third kind of incompatibility, conflicting loyalties, which was first recognized in Texas in Thomas v. Abernathy County Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted). In that case, the court held that

[t]he offices of school trustee and alderman are incompatible; for under our system there are in the city council or board of aldermen various directory or supervisory powers exertable in respect to school property located within the city or town and in respect to the duties of school trustee performable within its limits, e.g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, would be subject to direction of the council or aldermen instead of to that of the trustees.

Thomas, 290 S.W. at 153 (citations omitted). The court concluded that "[t]he result of this incompatibility is that [the officers at issue] vacated the offices of school trustees when they qualified as aldermen." Id.

As we have noted, the school district is entirely encompassed within the boundaries of the EMCID. Where the geographical boundaries of two governmental bodies overlap, there is always the potential for conflict, particularly when both entities collect taxes. See Tex. Att'y Gen. Op. No. GA-0015 (2003) at 2. You suggest, however, that this doctrine is not applicable in the present instance because the two districts impose different kinds of tax: the school district levies ad valorem taxes on real property, while the EMCID levies a sales and use tax which may be imposed only after a vote of the electorate. Although this distinction may have some superficial appeal, its limitations become obvious upon closer examination. In the first place, the EMCID directors must first call an election in order to impose a sales and use tax. See EMCID Act, supra note 2, § 22(a), at 4992. More significantly, the EMCID board may unilaterally abolish the sales and use tax without the necessity of calling an election. See id. § 26, at 4992. Thus, the EMCID directors retain substantial authority with regard to the levy of taxes. As we said in Opinion GA-0032, quoting Opinion JC-0557, "'[w]here the object of each district is to maximize its own revenues, a single individual would have great difficulty in exercising his duties to two separate and competing masters.'" Tex. Att'y Gen. Op. Nos. GA-0032 (2003) at 5; JC-0557 (2002) at 5. Given the EMCID board's authority to call a sales tax election and to abolish the sales tax unilaterally, we conclude that the members of both boards retain sufficient authority over taxation to render incompatible the simultaneous holding of positions on each board by one individual.

We conclude that under the conflicting loyalties aspect of the common-law doctrine of incompatibility, an individual may not simultaneously serve as trustee of the New Caney Independent School District and director of the East Montgomery County Improvement District.

SUMMARY

Under the conflicting loyalties aspect of the common-law doctrine of incompatibility, an individual may not simultaneously serve as trustee of the New Caney Independent School District and director of the East Montgomery County Improvement District.

Yours very truly,

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Allan B. Ritter, Chair, Committee on Economic Development, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (Aug. 27, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Act of May 28, 1997, 75th Leg., R.S., ch. 1316, § 1(a), 1997 Tex. Gen. Laws 4987 [hereinafter EMCID Act].